CA Unpub Decisions

Anthony Merlo sued the City of Palo Alto (City), alleging that in 2005 it improperly conducted an election approving an increase in storm drain fees. The essence of his claim is that the proposed storm drain increase constituted an assessment under article XIII D of the California Constitution (hereafter article XIII D), and, as such, certain mandatory election procedures were not followed by City. The court sustained without leave to amend Citys demurrer to the third amended complaint (Complaint). Thereafter, Merlo filed a dismissal without prejudice of the action and initiated this appeal.

Merlo contends that the court should not have sustained the demurrer to the Complaint without leave to amend. He argues that the court erred in granting Citys request for judicial notice and that it improperly relied on the documents of which it took judicial notice to conclude that the Complaint failed to state a cause of action. He argues further that he stated a cause of action challenging the 2005 election because the proposed storm drain fee increase was an assessment, rather than a property-related fee, and City failed to comply with the required procedures for an election concerning a proposed assessment.
Court conclude that the trial court did not err or abuse its discretion in granting Citys request for judicial notice. Court hold further that the Complaint failed to state a cause of action and that Merlo did not demonstrate a reasonable probability that he could amend to state a viable cause of action. Accordingly, Court affirm the dismissal entered on the order sustaining demurrer without leave to amend.

Defendant Antoine Ardds appeals from the judgment below. Court reverse his conviction on count one as both defendant and the Attorney General request, and affirm the judgment in all other respects.

Deborah Streicher (Streicher) appeals from an order denying her petition for a writ of mandate (Code Civ. Proc., 1094.5), by which she sought reversal of an administrative decision declaring her dog a public nuisance and ordering that the dog be humanely destroyed. The decision was made after a hearing that was held on the basis of her purported breach of her written agreement with the Alameda County Sheriffs Office regarding the dog. Streicher contends: (1) respondents had no authority to conduct an administrative hearing to determine whether she breached the agreement; (2) res judicata barred adjudication of the alleged breach because an earlier proceeding addressed the same incident; (3) collateral estoppel precludes respondents from arguing that they had authority to hold the administrative hearing; and (4) respondents previously conducted a hearing concerning the breach of the agreement and could not conduct a second. Court affirm the order.

Deborah Streicher (Streicher) appeals from an order denying her petition for a writ of mandate (Code Civ. Proc., 1094.5), by which she sought reversal of an administrative decision declaring her dog a public nuisance and ordering that the dog be humanely destroyed. The decision was made after a hearing that was held on the basis of her purported breach of her written agreement with the Alameda County Sheriffs Office regarding the dog. Streicher contends: (1) respondents had no authority to conduct an administrative hearing to determine whether she breached the agreement; (2) res judicata barred adjudication of the alleged breach because an earlier proceeding addressed the same incident; (3) collateral estoppel precludes respondents from arguing that they had authority to hold the administrative hearing; and (4) respondents previously conducted a hearing concerning the breach of the agreement and could not conduct a second. Court affirm the order.

John DeMarchi and Leonard Devilbiss were involved in a motorcycle accident, which resulted in a severe cut to Devilbisss left thumb. Although Devilbiss had been able to resume work after the accident, at trial he testified that the thumb injury would limit his future earnings. Among other arguments, DeMarchi contends that the jurys award of future lost earnings was not supported by the evidence, in light of Devilbisss return to work. Court affirm.

This is an appeal from the trial courts judgment on certain reserved issues in the marriage dissolution proceedings of appellant Erin Young (Wife) and respondent Bruce Young (Husband). The trial court entered the judgment after amending its earlier proposed statement of decision, which had found Husband transmuted his separate real property into property held by both parties in joint tenancy. After hearing Husbands objections to the proposed statement of decision, the trial court concluded that no transmutation occurred because there was no writing evidencing Husbands intent to transfer part of his ownership interest in the property to Wife. Wife contends the trial courts changed decision amounted to error, and seeks to vacate the judgment on reserved issues and have the earlier proposed statement of decision entered as the judgment. Court conclude the trial court erred as a matter of law in concluding that no transmutation had occurred.

Samuel A. Lopez appeals from an antiharassment restraining order. (Code Civ. Proc., 527.6.) The appeal is moot because the order restraining him expired on March 19, 2007. (See, e.g., Environmental Charter High School v. Centinela Valley Union High School Dist. (2004) 122 Cal.App.4th 139, 144 [appeal from grant of temporal relief is moot if relief expires before appeal can be heard].) Accordingly, the appeal is dismissed.

Washington Mutual Bank (Washington Mutual) timely petitions for review (Lab. Code 5950 & 5952)[1] of the order and opinion denying reconsideration of the Workers Compensation Appeals Board (Board) which affirmed an award to respondent, Judy Helm.[2] There is no dispute that worker, Judy Helm, sustained compensable injury to her right wrist, right shoulder, neck and back, during the period February 29, 2000 to May 2, 2000. The sole issue is Washington Mutuals contention that the award was improperly calculated using the 1997 schedule for rating permanent disabilities, in effect prior to January 1, 2005. We conclude that the Board should have used the new schedule that went into effect on January 1, 2005. The portion of the decision and opinion after reconsideration applying the 1997 rating schedule to the calculation of permanent disability is annulled. The matter is remanded to the Board for further proceedings consistent with this opinion.

A modification decision.

Dexter Eric Williams appeals from the judgment entered following his conviction by jury on count 1 - second degree murder (Pen. Code, 187) and count 2 - shooting from a motor vehicle (Pen. Code, 12034, subd. (c)) with, as to each offense, personal use of a firearm (Pen. Code, 12022.53, subd. (b)), personal and intentional discharge of a firearm (Pen. Code, 12022.53, subd. (c)), and personal and intentional discharge of a firearm causing great bodily injury and death (Pen. Code, 12022.53, subd. (d)), with court findings that he suffered a prior felony conviction (Pen. Code, 667, subd. (d)), a prior serious felony conviction (Pen. Code 667, subd. (a)), and a prior felony conviction for which he served a separate prison term (Pen. Code, 667.5, subd. (b)). The court sentenced him to prison for an unstayed term of 60 years to life.
In this case, Court reject appellants claim that the trial court erred by failing to instruct on perfect self defense. There was no substantial evidence that when appellant shot and killed the decedent, appellant actually or reasonably believed that he was in imminent danger of death or great bodily injury.The judgment is modified by striking the Penal Code section 667.5, subdivision (b), enhancement pertaining to count 2, and, as modified, the judgment is affirmed.

Tyrone Prince Denmark appeals from the judgment entered following his conviction by jury of first degree residential burglary with a person present (Pen. Code, 459, 667.5, subd. (c)(21)) with admissions that he suffered a prior felony conviction (Pen. Code, 667, subd. (d)), a prior serious felony conviction (Pen. Code, 667, subd. (a)), and a prior felony conviction for which he served a separate prison term (Pen. Code, 667.5, subd. (b)). The court sentenced appellant to prison for nine years. Appellant contends that trial and sentencing errors occurred. Court affirm the judgment.

A modification decision.

Continental Insurance Co. appeals from a summary judgment on forfeited bond after the trial court denied its motion to vacate the forfeiture and exonerate the bond. Citing Penal Code section 1305,[1] Continental contends the trial court lost jurisdiction to declare the forfeiture when the criminal defendant-bailee, Elam Yousefi, previously failed to appear at a pretrial hearing. In denying Continentals motion, the trial court found that Yousefi had not been required to appear at that previous hearing, and therefore jurisdiction had not been lost. Substantial evidence supports the trial courts finding. Accordingly, Court affirm the judgment.

Appellant Erwin M. (Erwin), a minor, found a loaded, sawed-off shotgun in the bushes near his residence, and hid it under the clutter in the side yard of the property. Upon the discovery of the shotgun by a family member and neighbors, the juvenile court detained Erwin and sustained a petition under Welfare and Institutions Code section 602, finding true the allegation that Erwin possessed live ammunition in violation of Penal Code section 12101, subdivision (b)(1).[1]

On appeal from the juvenile courts order sustaining the petition, Erwin contends that there is insufficient evidence to support the trial courts finding that he possessed live ammunition. He also contends that certain of the conditions of his probation, as orally pronounced by the juvenile court, are not accurately reflected in the courts records and that those records must therefore be corrected.
Court hold there is substantial evidence in the record to support the juvenile courts finding that Erwin possessed live ammunition. We agree, however, that the juvenile courts records do not accurately reflect the conditions of probation, as orally pronounced by the court, and that those records must be corrected. Accordingly, Court affirm the order of the juvenile court sustaining the petition under Welfare and Institutions Code section 602, and direct the juvenile court to correct its records to reflect accurately the conditions of Erwins probation as orally pronounced by the court at the disposition hearing.